Armed Force in Iraq
Relying on U.N. Security Council Resolution 1441 (2002) and on the sovereign authority of the United States to use force in assuring its own national security, President Bush has said that the United States and its allies will use armed force to disarm Iraq if Saddam Hussein and his sons do not leave Iraq within a 48-hour deadline.
The principal international law issues raised by the President's ultimatum have been discussed in previous ASIL Insights. See "Security Council Resolution 1441 on Iraq's Final Opportunity to Comply with Disarmament Obligations" (Nov. 2002); "Pre-emptive Action to Forestall Terrorism" (June 2002); "The Legal Background on the Use of Force to Induce Iraq to Comply with Security Council Resolutions" (Nov. 1997) and the Comment thereto by Edwin D. Williamson (March 1998). These Insights and others are on line at <www.asil.org/insights.cfm>.
An issue not discussed in those Insights concerns the unsuccessful effort by the United States, the United Kingdom and Spain to secure the nine votes that would be necessary in the Security Council (in the absence of a veto by a permanent member) to obtain a further resolution that would clearly authorize the use of force. It could be argued that the effort itself shows that the proponents recognized not only that Security Council support is necessary (and that the only other permissible ground for use of force, self-defense, is inapplicable), but also that Resolution 1441 and the earlier Resolutions 678 and 687 did not clearly enough authorize the current use of force. The proponents then could be said to have regarded a clearer demonstration of support by the Security Council to be a legally significant - perhaps a necessary - authorization for the use of force under the current circumstances. The withdrawal of the proposed resolution in the face of a lack of sufficient backing from other Security Council members thus could indicate that an essential prerequisite to the use of force is lacking.
The argument to the contrary would be that the effort to obtain nine votes for a new resolution simply shows that the United States and its allies were doing everything possible to work within the system, without conceding that it was legally necessary to obtain any new authorization for the use of force. The U.S. government has consistently made that argument since Resolution 1441 was adopted. Some support for the argument could be drawn from the willingness of the United States to push for nine votes in the Security Council even in the face of an inevitable veto that would have defeated the proposed resolution and would have blocked any new authorization.
About the Author:
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.
Addendum
By Mary Ellen O'Connell
April 2003
On March 20, 2003, the United Kingdom and the United States sent letters to the United Nations Security Council reporting on their use of force against Iraq and their legal justifications for doing so. The UK letter invokes a right to enforce Security Council resolutions requiring Iraqi disarmament. [1] The US letter argues that the basis of the 1991 ceasefire with Iraq was removed, reviving authorization to use force against Iraq found in resolution 678 (1990). [2] The US letter also says the US was acting in its own defense and the defense of the international community. International law scholars have raised serious issues regarding all three justifications.
The UK letter states the "action follows a long history of non-cooperation by Iraq.with disarmament obligations imposed on it by the Council, including in resolutions 678 (1990), 687 (1991) and 1441 (2002)." "The objective of the action is to secure compliance by Iraq with its disarmament obligations as laid down by the Council." The UK and US have long argued that they have the right to use force to enforce Iraqi obligations in Security Council resolutions.
Of the resolutions cited in the UK letter, only resolution 678 authorizes the use of force, but it was adopted on November 29, 1990, to effect the liberation of Kuwait from Iraqi occupation and before Iraq had disarmament obligations. [3] Disarmament obligations were not placed on Iraq until resolution 687, the ceasefire resolution of April 3, 1991. Resolution 687 affirms the "sovereignty, territorial integrity and political independence of Kuwait and Iraq" and the intention of Members to "bring their military presence in Iraq to an end as soon as possible." The resolution then establishes several measures to realize the "objective of restoring international peace and security in the area." These measures included demarcating the common Kuwait-Iraq border, creating a ten-mile demilitarized zone between the two states, as well as placing disarmament and financial obligations on Iraq. To enforce these measures the Council decided it would leave economic sanctions in place until Iraq was in full compliance. In the resolution's final paragraph the Council decided to "remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area." Resolution 687 contains no express authority for any state to use force.
A week after the adoption of resolution 687, the Security Council adopted a third resolution--resolution 688--calling on Iraq to end the repression of the Kurds and other citizens "as a contribution to removing the threat to international peace and security in the region" and to "allow immediate access by international humanitarian organizations." Within days of the adoption of resolution 688, US, French, British, Dutch and German troops established the Kurdish protection zone in northern Iraq. The US adopted the UK's argument justifying the legality of this force: that because resolution 688 referred to "peace and security in the region" and resolution 678 referred to peace in the area, reading resolution 678 together with resolution 688, allowed force to be used to enforce 688. [4] A similar argument was made to justify the subsequent imposition of no-fly zones over northern and southern Iraq by the US, UK and France. [5] In 1998, however, when the US and UK used an intense bombing campaign to attempt to induce Saddam Hussein to re-admit UN weapons inspectors, a majority of the Council condemned the action as unlawful. [6] It might be argued that the US/UK interpretation of resolutions 688 and 678 was acquiesced in by the Council with respect to the Kurdish and no-fly zones. [7] No similar argument can be made respecting the use of force to enforce Iraqi disarmament obligations under resolution 687.
The Council passed resolution 1441 on November 12, 2002, but it provided no new authorization for using force. It states in paragraph 12 that a meeting of the Security Council will be the first step upon a report by inspectors that Iraq obstructed their activities. Russia, France and China have all stated they understood resolution 1441 permitted no automatic use of force. Subsequently, in fact, members of the Council were unwilling to adopt a proposed resolution that would authorize force to enforce Iraqi disarmament. Resolution 1441 states affirmatively that in the event of a material breach by Iraq of its obligations to cooperate, serious consequences would follow. But, again, the resolution does not say what serious consequences would follow. Nor did it provide any right of unilateral US/UK enforcement.
The argument in the March 20 US letter to the Security Council that Iraq's failure to fulfill its obligations under resolution 687 resulted in the termination of that resolution is also problematic. Analogizing to multilateral treaties, the argument is that a material breach of the obligations terminated the formal cease-fire in resolution 687 and returned the parties to the pre-ceasefire legal situation, specifically the situation created by resolution 678. Resolution 678 allowed the use of "all necessary means," including, presumably, taking the defense of Kuwait to Baghdad and ending the regime of Saddam Hussein.
Scholars raise at least three problems with this argument: first, resolutions are not treaties and do not automatically terminate upon material breach. Second, the argument that resolution 687 lapsed and resolution 678 revived is inconsistent with the legal position staked out by the US and UK for the last 12 years, and, third, resolution 678 never authorized the forcible change of Iraq's regime in the first place.
While it is true that in some cases of material breach of a multilateral treaty, the nonbreaching parties may suspend the treaty's operation or terminate it, [8] the analogy to resolutions is inapposite. Security Council resolutions are not treaties. They are not agreements among equals reached through negotiations, aimed at achieving consensus and binding on all parties alike if they give their consent. Council resolutions, by contrast, are mandates imposed on certain states that must be respected whether those states consent or not. [9] Resolutions are enforced, modified, or terminated by the Security Council acting under the terms of the UN Charter. The Charter does not authorize either states in general, or individual or groups of Security Council members, to take enforcement action on their own.
An additional problem with this line of argument is that it is unclear exactly when and how resolution 687 lapsed and 678 was revived. As of March 17, 2003, the US and UK were still looking for authority to use force to enforce it. Indeed, until March 19, 2003, the US and UK acted consistently in the belief that resolution 687 was a viable Security Council mandate that imposed obligations on Iraq to comply despite Iraq's consistent failure to do so; moreover, the resolution was receiving full Security Council attention toward getting Iraq to comply.
Even if resolution 687 could lapse and resolution 678 could revive, resolution 678 never authorized the use of force to forcibly change Iraq's government. Resolution 678 was about liberating Kuwait and providing security in the area. The US has acknowledged that the coalition had authority only for these purposes. [10] This fact is also evident in the terms of resolution 687 affirming both Kuwait's and Iraq's territorial integrity and political independence. Resolution 687 established a demilitarized zone between Kuwait and Iraq and disarmament obligations on Iraq, without calling for regime change in Iraq.
The final argument made by the United States in its March 20 letter to the Security Council is that the coalition's actions against Iraq in 2003 were "necessary steps to defend the United States and the international community from the threat posed by Iraq and to restore international peace and security in the area." The US appears to argue it may use force in self-defense because it perceived a threat of future harm from Iraq. The pre-emptive use of military force absent an armed attack violates the plain terms of the United Nations Charter and the prevailing interpretation of those terms. Under the Charter, states may use force in self-defense if an armed attack occurs. [11] For all other security concerns, states are to go to the Security Council. The Council may then authorize all necessary means to respond to what it determines is a threat to international peace and security. [12]
About the Author:
Mary Ellen O'Connell, William B. Saxbe Designated Professor of Law, The Ohio State University
[1] Letter dated 20 March 2003 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security council, UN Doc. S/2003/350 (Mar. 21, 2003).
[2] Letter dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, UN Doc. S/2003/351 (Mar. 21, 2003). The lapsing ceasefire argument also appears in a statement to the House of Lords by the British Attorney General and in Iraq: Legal Basis for the Use of Force, Foreign and Commonwealth Office, 17 March 2003 (on file with the author.)
[3] The resolution has only five operative paragraphs:
1.) Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decision, to allow Iraq one final opportunity, as a pause of good will, to do so:
2.) Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;
3.) Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 above;
4.) Requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken pursuant to paragraphs 2 and 3 above;
5.) Decides to remain seized of the matter.
[4] Author interview with Edwin Williamson, State Department Legal Adviser, Washington, D.C. (Apr. 19, 1991), reference to the interview first published in Mary Ellen O'Connell, Continuing Limits on UN Intervention in Civil War, 67 Ind. L.J. 903 (1992).
[5] See House of Commons debates excerpted in 65 Brit. Y.B. Int'l L. 683 (1994); 64 Brit. Y.B. Int'l L. 728-29 (1993); see also, Christine Gray, From Unity to Polarization: International Law and the Use of Force Against Iraq, 13 Eur. J. Int'l L. 1, 9 (2002).
[6] U.N. SCOR 53d Sess., 3955th mtg., U.N. Doc. S/PV.3955, Dec. 16, 1998.
[7] For more on implicit authorization, see Jules Lobel & Michael Ratner, Bypassing the Security Council, Ambiguous Authorization to Use Force, Cease-Fires, and the Iraqi Inspection Regime, 93 Am. J. Int'l L. 124 (1999).
[8] Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 60, 1155 UNTS 331.
[9] See UN Charter Article 25.
[10] Testimony of Assistant Secretary of State John Kelley and Assistant Secretary of Defense Henry Rowen before the Europe and Middle East Subcomm. of the House Comm. on Foreign Affairs, Federal News Service, June 26, 1991, at 151, available in LEXIS, News Library, Fednew File, cited in Lobel & Ratner, supra note 7 at n. 61. See also, Marack Goulding, Remarks, 91 ASIL Proc. 132, 157-58 (1997).
[11] UN Charter, art. 51.
[12] For more on preemptive force, see Frederic Kirgis, Pre-emptive Action to Forestall Terrorism, ASIL Insights (June 2002), available at http://www.asil.org/insights/insigh88.htm; see also Mary Ellen O'Connell, The Myth of Preemptive Self-Defense, available at http://www.asil.org/taskforce/oconnell.pdf